Supreme Court Signals Curb to Online Porn

Sexually explicit websites could be forced to implement barriers to keep children away.

WASHINGTON — Internet sites that offer sexually explicit material may soon face their first real threat of criminal prosecution, judging from the friendly reception the Supreme Court gave Tuesday to a disputed and never-enforced federal law.

The Child Online Protection Act calls for fines and jail terms for those who post explicit text or images on a commercial website that can be tapped by minors. Though passed by Congress in 1998, it has been blocked by federal judges, who cited free-speech concerns.

But the high court took up the government's appeal Tuesday, and several justices said it made sense to create a type of barrier on the Internet that would prevent children from having access to pornography. For example, to comply with the law, pornography websites might have to require viewers to give credit card numbers or other proof that they are adults.

These and other requirements would re-create the restrictions on pornography that are familiar to earlier generations, supporters of the federal law say, such as prohibiting minors from entering adult theaters or bookstores and opaque racks or other means of preventing minors from perusing sexually oriented magazines.

The Internet has broken down barriers and given minors unrestricted access to explicit pornography, U.S. Solicitor Gen. Theodore B. Olson told the court. Type in the words "free porn" on an Internet search engine, he said, and you get a list of 6 million sites. "They are all available to you or to me or to a 12-year-old," he told the justices.

The federal law would force websites to create a modern "counterpart to the blinder rack," Olson said, referring to the opaque racks that hide sex magazines.

Justice Stephen G. Breyer told a lawyer for the American Civil Liberties Union that he did not see the law as a true threat to free speech.

Seven years ago, in their first case involving the Internet, the justices struck down a broad law that made it a crime to send an "indecent" transmission online. That measure, the Communications Decency Act, had made it a federal crime to send a crude e-mail message from one person to another, and the justices unanimously agreed it went too far.

Congress later narrowed the law to apply only to commercial websites and to material that "taken as a whole" is pornographic.

Olson said the law did not extend to art galleries or sex education columns, for example. The law exempts material that has "serious literary, artistic, political or scientific value," he said.

Breyer said it appeared to be a reasonable way to shield minors. "What is the right way for Congress to go about it?" he asked Ann Beeson, the ACLU lawyer. "They [lawmakers] are interested in professional pornographers. This is zoning, and it's most consistent with the 1st Amendment. [It] is letting adults see anything at all, but you have to identify yourself as an adult."

Beeson argued that many adults would stay away from sexually explicit websites if they were forced to give a credit card or other proof of their identity. "This will have a broad chilling effect on adults," she said.

Justice John Paul Stevens, the author of the 1997 opinion that struck down the earlier law, said he was not convinced. "Millions of users give their credit card number when they make purchases online. I don't see the problem," he said.

In June, the Supreme Court upheld a related law that requires libraries to install software filters that screen out sexually explicit material.

A lower court had struck down that measure as a free-speech violation, but the justices characterized it as a reasonable means to shield children without unduly restricting adults. Those who ask a librarian for permission can have the filter disconnected.

Olson characterized the pending law in the same way. It protects children and poses only a slight inconvenience for adults, he said.

"We have to acknowledge there is some burden for you if you have to identify yourself," he said. Balancing against that inconvenience, he said, "is the significant harm being done to minors."

According to a survey done for Congress, the government said, 70 million people visit pornographic websites each week, and 16% of them -- or about 11 million -- are under age 18. Another survey found that 25% of minors ages 10 to 17 said they had inadvertently viewed pornography on the Internet in the prior year, the government said.

Only Justices Anthony Kennedy and Ruth Bader Ginsburg raised doubts about the law during Tuesday's argument.

"It seems to be me this is very sweeping," Kennedy said. He referred to passages in the law that refer to "any communication for commercial purposes that is available to any minor" that includes material that is "harmful to minors."

If the law were enforced, Beeson said, sponsors of websites that include sexual material would have two options. They could "self-censor" and remove material that is inappropriate for persons under 16. Or they would have to adopt a system of adult access codes that would drive away many users, she said.